Appeal No. 2001-2107
Application No. 09/349,439
and replace depleted gases.” An on phase and an off phase of the duty cycle (i.e., RF bias voltage)
are clearly taught by Lampe. On the other hand, Lampe never states that the “fresh reactant gases
[that] fill the tube and replace depleted gases” are deposited onto the wafers during the off phase. In
the absence of such a teaching, the examiner is merely relying on speculation to fill in the missing
gap in the teachings of Wolf. An obviousness rejection can not be sustained based upon the
examiner’s speculation as to the teachings of a reference. Stated differently, evidence in the record
is needed to support the examiner’s speculative conclusion that the claimed invention would have
been obvious to the skilled artisan based upon the teachings of the applied references. In re Lee,
277 F.3d 1338, 1344-45, 61 USPQ2d 1430, 1434-35 (Fed. Cir. 2002). In summary, the 35 U.S.C.
§ 103(a) rejection of claims 13, 14, 17 and 23 is reversed.
The 35 U.S.C. § 103(a) rejection of claims 18 through 22 is reversed because the teachings of
Anderson, Drab and Paz de Araujo do not cure the noted shortcoming in the teachings of Wolf.
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